People v Pressley

People v Pressley 2014 NY Slip Op 02087 Decided on March 26, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 26, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
SANDRA L. SGROI
JEFFREY A. COHEN
HECTOR D. LASALLE, JJ.
2011-10518
(Ind. No. 799/10)

[*1]The People of the State of New York, respondent,

v

Bobby Pressley, appellant.




Lynn W. L. Fahey, New York, N.Y. (Jenin Younes of counsel),
for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y.
(Leonard Joblove, Thomas M. Ross,
and Eunice Y. Lee of counsel), for
respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered November 11, 2011, convicting him of criminal possession of a weapon in the second degree and criminal solicitation in the second degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 15 years followed by a 5-year period of postrelease supervision on the conviction of criminal possession of a weapon in the second degree and an indeterminate term of imprisonment of 2⅓ to 7 years on the conviction of criminal solicitation in the second degree, with the terms of imprisonment to run consecutively to each other.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the sentences shall run concurrently with each other; as so modified, the judgment is affirmed.

The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence as to the count of criminal possession of a weapon in the second degree (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492-493). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish, beyond a reasonable doubt, the defendant's guilt of the crime of criminal possession of a weapon in the second degree, under an acting-in-concert theory (see People v Johnson, 94 AD3d 1408, 1409; People v Christie, 55 AD3d 341; People v Martinez, 8 AD3d 8).

The defendant contends that the Supreme Court's procedure for handling certain jury notes violated the procedure set forth by the Court of Appeals in People v O'Rama (78 NY2d 270, 277-278). To the extent that certain of the jury notes requested read-backs of testimony, read-backs of charges, or the viewing of exhibits, the defendant's contention is unpreserved for appellate review, and the alleged error did not constitute a mode of proceedings error which would obviate the preservation requirement (see People v Alcide, 21 NY3d 687; People v Starling, 85 NY2d 509, 516; People v Lockley, 84 AD3d 836; People v Bryant, 82 AD3d 1114; cf. People v Gadson, 110 AD3d 1098). With respect to two of the notes, wherein the jury sought clarification as to points of law, rather than a mere read-back of the jury charge, the court fulfilled its "core responsibilities" under CPL 310.30 (see People v Kadarko, 14 NY3d 426; People v Woodrow, 89 AD3d 1158). [*2]

The sentence was excessive to the extent indicated herein (see People v Suitte, 90 AD2d 80).
BALKIN, J.P., SGROI, COHEN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court